Ordinance 2007-098 ORDINANCE NO.Qo6 - O(%
AN ORDINANCE AMENDING THE MUNICIPAL CODE OF THE UNITED CITY OF
YORKVILLE, KENDALL COUNTY, ILLINOIS, AUTHORIZING A CABLE/VIDEO
SERVICE PROVIDER FEE AND PEG ACCESS SUPPORT FEE
WHEREAS, the City has the authority to adopt ordinances and to promulgate rules and
regulations that pertain to its government and affairs and that protect the public health, safety,
and welfare of its citizens; and
WHEREAS, this Ordinance is adopted pursuant to the provisions of the Illinois Cable
and Video Competition Law of 2007, Public Act 95 -0009 (the "Act "); and
WHEREAS, this Ordinance is intended to establish the service provider fee and the PEG
access support fee the Act authorizes municipalities to impose on a holder under 220 ILCS 5/21-
801.
NOW, THEREFORE, BE IT ORDAINED by the Mayor and City Council of the
United City of Yorkville as follows:
Section 1. Recitals. The facts and statements contained in the preamble to this
Ordinance are found to be true and correct and are hereby adopted as part of this Ordinance.
Section 2. Adoption of Fee. Title 12 of the Municipal Code of the United City of
Yorkville shall be amended by the addition of Chapter 2 that will read as follows:
CHAPTER 2
CABLE/VIDEO SERVICE PROVIDER FEE AND PEG ACCESS SUPPORT FEE
12 -2 -1: DEFINITIONS:
As used in this Chapter, the following terms shall have the following meanings:
"Cable service" means that term as defined in 47 U.S.C. § 522(6).
"Commission" means the Illinois Commerce Commission.
"Gross revenues" means all consideration of any kind or nature, including, without limitation,
cash, credits, property, and in -kind contributions received by the holder for the operation of a
cable or video system to provide cable service or video service within the holder's cable service
or video service area within the City.
(1) Gross revenues shall include the following:
(i) Recurring charges for cable or video service.
(ii) Event -based charges for cable service or video service, including, but
not limited to, pay - per -view and video -on -demand charges.
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(iii) Rental of set top boxes and other cable service or video service
equipment.
(iv) Service charges related to the provision of cable service or video
service, including but not limited to activation, installation, and repair
charges.
(v) Administrative charges related to the provision of cable service or
video service, including but not limited to service order and service
termination charges.
(vi) Late payment fees or charges, insufficient funds check charges, and
other charges assessed to recover the costs of collecting delinquent
payments.
(vii) A pro rata portion of all revenue derived by the holder or its affiliates
pursuant to compensation arrangements for advertising or for
promotion or exhibition of any products or services derived from the
operation of the holder's network to provide cable service or video
service within the City. The allocation shall be based on the number of
subscribers in the City divided by the total number of subscribers in
relation to the relevant regional or national compensation arrangement.
(viii) Compensation received by the holder that is derived from the
operation of the holder's network to provide cable service or video
service with respect to commissions that are received by the holder as
compensation for promotion or exhibition of any products or services
on the holder's network, such as a "home shopping" or similar
channel, subject to subsection (ix).
(ix) In the case of a cable service or video service that is bundled or
integrated functionally with other services, capabilities, or
applications, the portion of the holder's revenue attributable to the
other services, capabilities, or applications shall be included in the
gross revenue unless the holder can reasonably identify the division or
exclusion of the revenue from its books and records that are kept in the
regular course of business.
(x) The service provider fee permitted by 220 ILCS 5/21- 801(b).
(2) Gross revenues do not include any of the following:
(i) Revenues not actually received, even if billed, such as bad debt,
subject to 220 ILCS 5/21-80 1 (c)(1)(vi).
(ii) Refunds, discounts, or other price adjustments that reduce the amount
of gross revenues received by the holder of the State - issued
authorization to the extent the refund, rebate, credit, or discount is
attributable to cable service or video service.
(iii) Regardless of whether the services are bundled, packaged, or
functionally integrated with cable service or video service, any
revenues received from services not classified as cable service or video
service, including, without limitation, revenue received from
telecommunication services, information services, or the provision of
directory or Internet advertising, including yellow pages, white pages,
banner advertisement, and electronic publishing or any other revenues
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attributed by the holder to noncable service or nonvideo service in
accordance with the holder's books and records and records kept in the
regular course of business and any applicable laws, rules, regulations,
standards, or orders.
(iv) The sale of cable services or video services for resale in which the
purchaser is required to collect the service provider fee from the
purchaser's subscribers to the extent the purchaser certifies in writing
that it will resell the service within the City and pay the fee permitted
by 220 ILCS 5/21- 801(b) with respect to the service.
(v) Any tax or fee of general applicability imposed upon the subscribers or
the transaction by a city, State, federal, or any other governmental
entity and collected by the holder of the State - issued authorization and
required to be remitted to the taxing entity, including sales and use
taxes.
(vi) Security deposits collected from subscribers.
(vii) Amounts paid by subscribers to "home shopping" or similar vendors
for merchandise sold through any home shopping channel offered as
part of the cable service or video service.
(3) Revenue of an affiliate of a holder shall be included in the calculation of gross
revenues to the extent the treatment of the revenue as revenue of the affiliate
rather than the holder has the effect of evading the payment of the fee permitted
by 220 ILCS 5/21- 801(b) which would otherwise be paid by the cable service or
video service.
"Holder" means a person or entity that has received authorization to offer or provide cable or
video service from the Commission pursuant to 220 ILCS 5/21 -401.
"PEG" means public, education and governmental.
"PEG access support fee" means the amount paid under this Article [Chapter] and 220 ILCS
5/21- 801(d) by the holder to the City for the service areas within its territorial jurisdiction.
"Service" means the provision of "cable service" or "video service" to subscribers and the
interaction of subscribers with the person or entity that has received authorization to offer or
provide cable or video service from the Commission pursuant to 220 ILCS 5/21 -401.
"Service provider fee" means the amount paid under this Article [Chapter] and 220 ILCS 5/21 -
801 by the holder to a City for the service areas within its territorial jurisdiction.
"Video service" means video programming and subscriber interaction, if any, that is required for
the selection or use of such video programming services, and which is provided through wireline
facilities located at least in part in the public right -of -way without regard to delivery technology,
including Internet protocol technology. This definition does not include any video programming
provided by a commercial mobile service provider defined in 47 U.S.C. § 332(d) or any video
programming provided solely as part of, and via, service that enables users to access content,
information, electronic mail, or other services offered over the public Internet.
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12 -2 -2: CABLE/VIDEO SERVICE PROVIDER FEE IMPOSED:
A. Fee Imposed. A fee is hereby imposed on any holder providing cable service or video service
in the City.
B. Amount of Fee. The amount of the fee imposed hereby shall be five percent (5 %) of the
holder's gross revenues.
C. Notice to the City. The holder shall notify the City at least ten (10) days prior to the date on
which the holder begins to offer cable service or video service in the City.
D. Holder's Liability. The holder shall be liable for and pay the service provider fee to the City.
The holder's liability for the fee shall commence on the first day of the calendar month following
thirty (30) days after receipt of the ordinance adopting this Chapter by the holder. The ordinance
adopting this Chapter shall be sent by mail, postage prepaid, to the address listed on the holder's
application notice sent pursuant to 220 ILCS 5/21- 401(b)(6) to the City.
E. Payment Date. The payment of the service provider fee shall be due on a quarterly basis,
forty -five (45) days after the close of the calendar quarter. If mailed, the fee is considered paid
on the date it is postmarked. Each payment shall include a statement explaining the basis for the
calculation of the fee.
F. Exemption. The fee hereby imposed does not apply to existing cable service or video service
providers that have an existing franchise agreement with the City in which a fee is paid.
G. Credit for Other Payments. An incumbent cable operator that elects to terminate an existing
agreement pursuant to 220 ILCS 5/21- 301(c) with credit for prepaid franchise fees under that
agreement may deduct the amount of such credit from the fees that operator owes under
Subsection B of this Section.
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12 -2 -3: PEG ACCESS SUPPORT FEE IMPOSED:
A. PEG Fee Imposed. A PEG access support fee is hereby imposed on any holder providing
cable service or video service in the City in addition to the fee imposed pursuant to Section 2.
B. Amount of Fee. Upon a written request by the City to the Holder after the Effective Date of
this Ordinance, the Holder shall agree to add an external charge of up to one dollar ($1.00) per
month, as determined below, on each direct pay Subscriber's bill for Basic Service for PEG
access capital pursuant to 47 U.S.C. 542(g)(2)(c) of the Cable Act, provided that such request
includes a written PEG capital needs assessment documenting the need and the intended
utilization of the requested PEG capital funds, as well as annual documentation by the City of
sufficient operating funds for the practical utilization of the contemplated capital investment.
Equipment purchase with the PEG access capital payments shall be utilized to develop PEG
programming for Subscribers.
The City's written request shall specify the amount of the external charge to be added to each
direct pay subscriber's bill for basic service for PEG access capital pursuant to 47 U.S.C.
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542(g)(2)(c) of the Cable Act. The external charge shall be added within one hundred and
twenty (120) days of the request, unless otherwise agreed to by the parties and remain on each
direct pay Subscriber's bill for basic service for twelve (12) months unless the City requests one
hundred twenty (120) days prior to the expiration of the original external charge, an extension of
the external charge for an additional twelve (12) months with the appropriate documentation in
accordance with the previous request. Additionally, the City may within one hundred twenty
(120) days prior to the expiration of the second external charge make a request for another
extension of the external charge for an additional twelve (12) months with the appropriate
' documentation in accordance with the original request.
The Holder shall collect the external charge and make the additional PEG capital payments in
installments from such collected sums. Said installments shall be paid at the same time and in
the same manner as Franchise Fee payments are made. The capital payments shall be expended
for PEG facilities and equipment to be utilized to develop PEG programming for Subscribers.
The Holder shall terminate the PEG external charge within one hundred and twenty (120) days
of a written request by the City to terminate the PEG external charge.
C. Payment. The holder shall pay the PEG access support fee to the City or to the entity
designated by the City to manage PEG access. The holder's liability for the PEG access support
fee shall commence on the date set forth in Subsection D of Section 2.
D. Payment Due. The payment of the PEG access support fee shall be due on a quarterly basis,
forty -five (45) days after the close of the calendar quarter. If mailed, the fee is considered paid
on the date it is postmarked. Each payment shall include a statement explaining the basis for the
calculation of the fee.
E. Credit for Other Payments. An incumbent cable operator that elects to terminate an existing
agreement pursuant to 220 ILCS 5/21- 301(c) shall pay, at the time they would have been due, all
monetary payments for PEG access that would have been due during the remaining term of the
agreement had it not been terminated pursuant to that section. All payments made by an
incumbent cable operator pursuant to the previous sentence may be credited against the fees that
that operator owes under Section B of this Section.
12 -2 -4: APPLICABLE PRINCIPLES:
All determinations and calculations under this Chapter shall be made pursuant to generally
accepted accounting principles.
12 -2 -5: NO IMPACT ON OTHER TAXES DUE FROM HOLDER:
Nothing contained in this Chapter shall be construed to exempt a holder from any tax that is or
may later be imposed by the City, including any tax that is or may later be required to be paid by
or through the holder with respect to cable service or video service. A State - issued authorization
shall not affect any requirement of the holder with respect to payment of the City's simplified
municipal telecommunications tax or any other tax as it applies to any telephone service
provided by the holder. A State - issued authorization shall not affect any requirement of the
holder with respect to payment of the local unit of government's 911 or E911 fees, taxes or
charges.
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12 -2 -6: AUDITS OF CABLENIDEO SERVICE PROVIDER:
A. Audit Requirement. The City will notify the holder of the requirements it imposes on other
cable service or video service providers to submit to an audit of its books and records. The
holder shall comply with the same requirements the City imposes on other cable service or video
service providers in its jurisdiction to audit the holder's books and records and to recompute any
amounts determined to be payable under the requirements of the City. If all local franchises
between the City and cable operator terminate, the audit requirements shall be those adopted by
the City pursuant to the Local Government Taxpayers' Bill of Rights Act, 50 ILCS 45/1 et seq.
No acceptance of amounts remitted should be construed as an accord that the amounts are
correct.
B. Additional Payments. Any additional amount due after an audit shall be paid within thirty (30)
days after the City's submission of an invoice for the sum.
12 -2 -7: LATE FEES/PAYWNTS:
All fees due and payments which are past due shall be governed by ordinances adopted by this
City pursuant to the Local Government Taxpayers' Bill of Rights Act, 50 ILCS 45/1 et seq.
Section 3. Severability. If any provision of this Ordinance, or the application of any
provision of this Ordinance, is held unconstitutional or otherwise invalid, such occurrence shall
not affect other provisions of this Ordinance, or their application, that can be given effect without
the unconstitutional or invalid provision or its application. Each unconstitutional or invalid
provision, or application of such provision, is severable, unless otherwise provided by this
Ordinance.
Section 4. Effective Date. This Ordinance shall be in full force and effect from and after
its passage and approval and publication as required by law.
PASSED this 1`6 day of 2007, pursuant to a roll call vote as follows:
AYES:. ►"° �`J�"`-�C ��°-`�
NAPES:
ABSENT:
ABSTAIN:
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APPROVED by me this L'�C day of 20 7.
Mayor of e A�ted9ii V
o ille
Kendall County, Illino
ATTESTED, Filed in my office,
And published in pamphlet form
This 1$ day of 6E42007.
r �l�l�f t1 United City of Yorkville
Kendall County, Illinois.
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